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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, April 19, 2017

The Second Circuit has once again declined to rule that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation, ruling that it cannot overrule a Second Circuit ruling from 2000 that said "sex discrimination" does not extend to gays and lesbians.

The case is Zarda v. Altitude Express, decided on April 18. I helped write the brief with lead counsel, Gregory Antollino, who argued the appeal. Zarda was a skydiver who was fired after a customer complained that he told her about his sexual orientation. A straight skydiver was not terminated after telling a customer about his own sexual orientation. The case went to trial in federal on a state-law discrimination claim after the district court ruled that plaintiff could not seek any relief under Title VII. The jury returned a defense verdict and plaintiff appealed the trial court's Title VII ruling, arguing that the EEOC's recent directive that Title VII prohibits sexual orientation discrimination renders the Second Circuit's decision in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), obsolete.

An interesting side note. The plaintiff in Zarda lost his sexual orientation claim at trial under state law. Defendant argued that Zarda cannot win his Title VII appeal because the jury has already said there was no discrimination. Zarda got around this by pointing out that the jury charge on the state law claim asked whether Zarda could prove "but for" causation. That is not the standard under Title VII, which asks whether the plaintiff's protected characteristic -- gender, race, etc. -- was a motivating factor in his termination. "Motivating factor" is a more plaintiff-friendly standard than "but-for" causation, so Zarda's Title VII challenge is not mooted by the adverse state-law verdict in federal court.